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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, October 27, 2006

The networks' refusal to accept ads for The Dixie Chicks documentary

(Updated below - Update II)

The new documentary, Shut Up & Sing, chronicles the hostile and sometimes threatening conduct directed towards The Dixie Chicks after one of the group's members criticized the Commander-in-Chief, President George W. Bush, during a 2003 concert. The documentary is being distributed by Harvey Weinstein's film company, and a preview for the film can be seen here.

According to Matt Drudge (a phrase that does not roll out of one's mouth easily), both NBC and the CW Television Network (the joint venture of CBS and Warner Brothers that combines the WB and UPN Networks) are refusing to air ads promoting Shut Up & Sing on the ground that the ads are "disparaging" to our President:

In an Ironic Twist of Events, NBC and The CW Television Network Refuse to Air Ads for Documentary Focusing on Freedom of Speech . . .

NBC responded to a clearance report submitted by the Weinstein Company’s media agency saying that the network “cannot accept these spots as they are disparaging to President Bush.”

The CW Television Network responded that it does “not have appropriate programming in which to schedule this spot.”

According to Drudge, David Boies, presumably representing the Weinstein Co., said that "it is disappointing and troubling that NBC and The CW would refuse to accept an otherwise appropriate ad merely because it is critical of President Bush," while Weinstein himself said that “it’s a sad commentary about the level of fear in our society that a movie about a group of courageous entertainers who were blacklisted for exercising their right of free speech is now itself being blacklisted by corporate America."

Leave to the side for the moment the fact that this controversy is far more likely to help the film than hurt it. Far more important than that issue is the emergence of a very disturbing trend whereby television networks are refusing to broadcast political advocacy material that will offend the Republican power structure in Washington.

In 2004, CBS and NBC both refused to broadcast an ad from the United Church of Christ which touted its acceptance of all people, including gays and lesbians, into its congregations. CBS said it rejected the Church's $2 million ad campaign "because its ad implies acceptance of gay and lesbian couples -- among other minority constituencies -- and is, therefore, too 'controversial.'" During that incident, CBS all but acknowledged that its decision was based upon the White House's potential disagreement with the ad's message:

Because this commercial touches on the exclusion of gay couples and other minority groups by other individuals and organizations . . . . and the fact the Executive Branch has recently proposed a Constitutional Amendment to define marriage as a union between a man and a woman, this spot is unacceptable for broadcast on the [CBS and UPN] networks.

The ad did nothing other than promote the Church by featuring its policy of inclusiveness:

The debut 30-second commercial features two muscle-bound "bouncers" standing guard outside a symbolic, picturesque church and selecting which persons are permitted to attend Sunday services.

Written text interrupts the scene, announcing, "Jesus didn't turn people away. Neither do we." A narrator then proclaims the United Church of Christ's commitment to Jesus' extravagant welcome: "No matter who you are, or where you are on life's journey, you are welcome here.".

That was all there was to that ad. But because that message of inclusiveness was deemed by CBS to possibly diverge from the decree of the President on the topic, CBS refused to broadcast it.

Similarly, for the 2004 Super Bowl, CBS refused to air "an ad underwritten by the grass-roots political organization Moveon.org criticizing the ballooning budget deficit under George W. Bush" -- the ad which was selected by MoveOn members as the winner of its ad contest. And various ABC and CBS affiliates refused to run an ad in 2002 produced by Arianna Huffington and Lawrence Bender urging Americans to avoid SUV's on the ground that high gasoline consumption finances terrorist states.

The networks' claim is that they prohibit controversial political advocacy ads because allowing such ads would bestow an unfair advantage in political debates to those with the financial resources to afford to purchase such advertising. But that is just ludicrous, since the networks are awash with all sorts of overtly political ads, corporate ads that convey implicit political values, and politically charged programming content. Worse, the targets of the rejected ads are typically the most empowered and well-financed groups in our country, and it is just laughable for the networks to claim that allowing ads critical of them will put them at an unfair disadvantage in political debates.

Once corporate-owned networks start selecting which politically-tinged ads are "too controversial" and which ones are not, it is inevitable that messages which please the political leadership which regulates those corporations will be allowed, while messages that displease those political leaders will be rejected. That is plainly what is happening.

To see that very disturbing dynamic in action, just contrast (a) CBS' capitulation to demands from conservatives that it not broadcast The Reagans at a time when both the network and its parent company, Viacom, had all sorts of critical legislative and regulatory matters dependent upon Washington Republicans, and (b) ABC's steadfast refusal to cancel Path to 9/11 even once it was revealed that the film contained patently false scenes that blamed the Clinton administration for the 9/11 attacks -- a film objected to by the powerless Democrats but loved by the in-power, Disney-regulating Republicans. As Law Professor Paul Campos pointed out during the MoveOn.org ad controversy:

Decisions of this sort are more than monuments to hypocrisy and double standards. Because those who have the right to broadcast over them have in effect a monopoly on the television airwaves, the television networks are regulated closely by the federal government. By law, the networks hold their broadcast rights in trust, and are thus obligated to do business in a way that is mindful of the public interest.

CBS doesn't serve the public interest when it rejects an otherwise appropriate advertisement because, in the opinion of the network's managers, the ad's message is too politically controversial. This is especially the case when the network broadcasts equally controversial political advertisements, during the same program for which the rejected ad was intended.

Given that CBS is regulated so heavily, and that indeed at this moment major legislation is pending that critics argue will unduly enhance the network's market share, is it possible that "too politically controversial" really means "harmful to CBS's corporate interests?" One need not be a cynic to suspect that, as a great American journalist used to put it, "that's the way it is."

The very idea that it is in the "public interest" to prohibit ads that criticize the Leader is ludicrous on its face. The President is constantly given free airtime to argue his views and propagandize on virtually every issue, and the networks endlessly offer forums for his followers and surrogates to defend him. And the networks' argument is particularly absurd now, given that networks are awash with cash from offensive, obnoxious, and repugnant political ads of every kind.

What possible justification is there for a network to prohibit the promotion of films which are critical of the nation's political leaders? Worse, the networks' recent history of ostensible avoidance of "controversial" political material seems extremely selective and one-sided. "Controversial" in this context seems actually to mean "likely to trigger displeasure among the Leader and his supporters."

The networks are still a very powerful public opinion instrument, and allowing them to become political propaganda venues -- where messages that "disparage" the Leader are prohibited while all sorts of pro-Leader messages are allowed -- has the potential to be quite harmful. We seem to be well on our way to that result.

UPDATE: As part of his superb report on political bias in the national media, eRiposte conclusively documents how this alleged network prohibition on "controversial political ads" virtually always operates to suppress political views that are critical of the administration and its allies.

UPDATE II: For those arguing that networks are private corporations free to do whatever they want, Rambuncle has a very clear explanation in comments as to why that is not the case. And see this comment from Ames.

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